Date: 20120529
Docket: IMM-8010-11
Citation: 2012 FC 656
Ottawa, Ontario, May
29, 2012
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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AIBEK
ONGELDINOV
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicant, Mr. Aibek Ongeldinov, a citizen of Kazakhstan, arrived in Canada in February 2010. Based on his ethnicity as a Kazak Muslim Turk and
his alleged association with the opposition Nagiz Akjol Party and the Eastern
Turkestan Liberation Organization, he seeks refugee protection in Canada. The Applicant’s sister, along with her husband, child, and in-laws (collectively,
the Applicant’s relatives), all travelled to Canada beginning in 2008. Even
though the Applicant’s claims were separate from those of the Applicant’s
relatives, there was evidently enough similarity that the claims were joined
and heard together at the same hearing before a panel of the Immigration and
Refugee Board, Refugee Protection Division (the Board). In a decision dated
October 19, 2011 (the Decision), the Board, in a single set of reasons, allowed
the claims of the Applicant’s relatives but dismissed the claim of the
Applicant, concluding that he was neither a Convention refugee nor a person in
need of protection under either s. 96 or 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
II. Alleged Errors
[2]
The Applicant seeks to overturn this Decision, raising the
following alleged errors:
1.
the Board’s findings with respect to the Applicant were
arbitrary, given the testimony of and decision for the Applicant’s relatives;
2.
the Board’s finding that the Applicant was “vague” on the
number of times he was detained is without evidentiary foundation;
3.
the Board’s finding that it was implausible that the
Applicant could have left Kazakhstan if he had been wanted by the authorities
is without evidentiary support; and
4.
the Board failed to provide the Applicant with an
opportunity to address an inconsistency between a letter from his father and
his testimony.
III. Analysis
[3]
As the issues in this application raise questions of fact
regarding credibility and the weighing of evidence, the applicable standard of
review is reasonableness. As taught by the Supreme Court of Canada, on a
standard of reasonableness, the Court should not intervene
where the decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190). It is trite law that
the Court must consider the decision as a whole. While individual findings,
when read in isolation, may not be sufficient to warrant the rejection of a
refugee claim, the Board may still reach a reasonable overall conclusion, based
on a series of problems with the testimony and evidence. That is what happened
in this case.
[4]
In its decision, the Board includes reference to all of the
evidence put to it by the Applicant; nothing was ignored. The core of the
Board’s reasons for rejecting the Applicant’s refugee claim is relatively
brief. At paragraph 60 of its decision, the Board wrote that,
I find that the [Applicant] has
not provided sufficiently credible and trustworthy evidence to indicate that he
has a political profile that would draw attention to him in Kazakhstan. He said he did not speak out and merely attended some demonstrations. There
are inconsistencies as to when he was detained by authorities and how many
times he was detained. I find that the detentions were added to his story to
bolster it. He said he fears arrest if he returns because he is wanted by the
authorities and, yet, he was permitted to leave the country. It is not
plausible that he would be permitted to leave if he were on the wanted list.
[5]
I will turn to a consideration of each of the alleged
errors.
A. Arbitrary
Decision
[6]
In his arguments, the Applicant relies extensively on
perceived similarities between the testimony and evidence of the Applicant and
that of his relatives and submits that the Board’s findings with respect to the
Applicant are different in the face of the same evidence. This, in the
Applicant’s view, demonstrates that the Board’s rejection of the Applicant’s
claim was arbitrary. The overall problem with this approach is that the
Applicant’s “story” must stand on its own. The fact is that the Applicant does
not base his claim on the claims of his relatives or his relationship with
them. In his Personal Information Form, the Applicant described his own
experiences with only minor reference to his relatives. There was no evidence
before the Board that the Applicant had experienced problems due to his
relationship with his relatives. Thus, even though the claims were joined for
the hearing, the Board made it very clear that it was dealing with three
different sets of allegations and that it was considering each set of
allegations separately.
[7]
Another problem with the Applicant’s reliance on the
results of the relatives’ testimony and the Board’s decisions with respect to
the relatives is that those findings are not under review. The mere fact that
the Board’s decision for the Applicant was different from that of his relatives
does not make the decision arbitrary, particularly when one examines the
evidence produced by the Applicant.
[8]
The foundation of the Applicant’s claim was his political
profile that resulted in detentions and other mistreatment by the authorities.
However, when questioned at the hearing, the Applicant admitted that he had:
(a) no membership documents showing that he was a member of any organization or
political party; (b) no medical certificates to support alleged injuries at the
hands of authorities; (c) no letters indicating that he had been associated
with a political party or had suffered any injury; (d) no documents, beyond a
student card, to show attendance at university. This evidence supports the
Board’s conclusion that he did not have a political profile that would attract
the attention of the authorities. I acknowledge that the Board could have made
more detailed reference to the lack of documentation. However, the conclusion
of lack of political profile was certainly open to the Board based on the fact
that documentation that one would reasonably expect was absent.
B. Vague
Testimony
[9]
In its reasons, the Board states that the Applicant was
“vague as to the number of times he had been detained. He finally said that it
was four times” (emphasis added). The Applicant submits that this
finding of vagueness is not supported by the transcript. I do not agree.
[10]
The Applicant points to the following testimony:
TRIBUNAL OFFICER: Now
sir, I am confused. Exactly how many times have you been detained by the
Turkish police and how many times have you been detained by the Kazak police?
CLAIMANT: From
the Turkish side, twice. And in Kazakhstan, three, four times I was detained.
TRIBUNAL OFFICER: Well
do you remember, is it three or four times sir?
CLAIMANT: Four
times I was taken.
[11]
Although the final answer appears to have been provided
quickly, there is no question that the Applicant initially provided an answer
that was different and that could be characterized as “vague”. While a minor
point, this vague initial response is supportive of the Board’s overall
finding. Moreover, the transcript cannot replace the real-time hearing of this
testimony. The term “vague” could, in part, have referred to his delivery of
the answers. This type of assessment can only be made by the Board who hears
the testimony. There is no reviewable error.
C. Implausibility
Finding
[12]
The Applicant is critical of the Board’s finding that it
was implausible that the authorities would have permitted the Applicant to leave
the country if he had been on the “wanted list”. The Applicant submits firstly
that the Board did not make similar implausibility findings with respect to the
Applicant’s relatives, even thought they too were alleging that they were arrested
and yet were permitted to leave the country. For the reasons expressed above,
the situation for the Applicant’s relatives is simply irrelevant.
[13]
The Applicant also argues that this finding is
“unreasonable on its own”.
[14]
In its decision, the Board referred to the April 8, 2011 United
States Department of State document on Kazakhstan from the Country Reports
on Human Rights Practices for 2010, contained in the National Documentation
Package on Kazakhstan. That report advises at page 292 of the Certified
Tribunal Record that,
Although the government did not
require exit visas for the temporary travel of citizens, there were certain
instances in which the government could deny exit from the country,
including for travelers subject to pending criminal or civil legal proceedings,
unfulfilled prison sentences, or compulsory military duty.
[Emphasis added]
[15]
The Applicant submits that the implausibility finding is
not supported by this passage, given that the Applicant was not, at the time of
his departure, the subject of “legal proceedings”.
[16]
Common sense and rationality tell me that someone who has
had serious interactions with the authorities would have some difficulty
leaving the country under his own identity. Yet, in this case, the Applicant
denied that he had any problems leaving Kazakhstan. This application of common
sense is supported by the Report, which was put to the Applicant.
[17]
Moreover, this was simply one more problem with the
Applicant’s testimony that led the Board to its overall conclusion.
[18]
I see no reviewable error.
D. Father’s
Letter
[19]
Some time after the hearing, the Applicant provided written
submissions and a letter, purportedly from the Applicant’s father, stating that
the Applicant had been arrested and detained in July 2009. The Board considered
this letter as follows:
A letter was provided from his
father that stated he was arrested and detained for two weeks on returning from
Turkey in July 2009. This letter also stated he was arrested again in
December 2009 but does not refer to the length of the detention at that time. I
find this letter is self-serving and is not consistent with the PIF narrative
and, therefore, I give it no weight.
[Footnotes omitted]
[20]
In his evidence, the Applicant stated that he had been
arrested in June 2009 – rather than July 2009 as stated by his father. The
Applicant submits that the inconsistencies in the letter should have been put
to the Applicant.
[21]
As a general proposition, inconsistencies should be put to
claimants before the Board relies on them to impugn a claimant’s credibility (Guo
v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1185 (QL)
(TD); Torres v Canada (Minister of Citizenship and Immigration), 2002
FCT 212, [2002] FCJ No 277). However, the failure of the Board to direct a
claimant to an inconsistency is not always a reviewable error (Ngongo v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1627,
(QL) (TD)). Whether the inconsistency must explicitly be put to a claimant will
depend on the facts of each case.
[22]
On the facts of this case, the first thing to note is that
the Board did not rely on the inconsistency to impugn the credibility of the Applicant.
Rather, the inconsistencies between the father’s letter and the Applicant’s PIF
led the Board to conclude that the letter itself was not a reliable or
persuasive piece of evidence. This was a finding reasonably open to the Board.
[23]
Secondly, this letter was provided by Applicant’s counsel
after the hearing. The inconsistency in the dates of arrest is glaringly
obvious and could have been addressed by counsel in final submissions.
[24]
In the circumstances, there was no duty on the Board to
re-open the hearing to allow the Applicant to respond to the obvious
inconsistency. There is no reviewable error.
IV. Conclusion
[25]
In sum, the Board concluded that the Applicant’s story
simply did not establish the elements of persecution, under s. 96 or 97 of IRPA.
The fact that the Applicant’s relatives were able to muster different evidence
and have their claims accepted does not change the weaknesses in the
Applicant’s evidence. I am satisfied that the Board’s decision with respect to
the Applicant, is reasonable; it falls within the range of possible, acceptable outcomes which are defensible in respect of
the facts and law.
[26]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
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